Multipurpose Co-operative Society Ltd v Serser & 3 others (Civil Appeal 160 of 2018) [2023] KECA 441 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once you file a Notice of Appeal, you cannot also ask the court to review the same judgment — you must choose one path.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Appeal lodged by the appellant barred it from filing an application for review
- 2.Whether the appellant satisfied the conditions for grant of an order for review, including whether there was an error apparent on the face of the record
- 3.Whether there was inordinate and unexplained delay in filing the application for review
Key legal issues
#Whether filing a Notice of Appeal precludes a subsequent application for review
Filing a Notice of Appeal amounts to instituting an appeal; once filed, review of the underlying judgment is not available. The Court endorsed Otieno, Ragot & Company Advocates v National Bank of Kenya Limited, noting that pursuing review while keeping an appeal open is an impermissible gambling with the judicial process.
The Court considered Yani Haryanto and Highway Secondary School v Mmosi Moi, which suggested the two options could run sequentially, but preferred Otieno, Ragot, reasoning that a party who has filed a Notice of Appeal is deemed to have lodged an appeal under Rule 5(2)(b) of the Court of Appeal Rules. Conversely, one who has not lodged a Notice cannot seek stay or injunction pending appeal. Review under Order 45 rule 1(a) is only available where no appeal has been preferred.
Whether the alleged failure to consider breach of the appellant's by-laws constituted an error apparent on the face of the record
It did not. The alleged error went to the manner in which the trial judge arrived at her decision and would require analysis of the evidence — a matter for an appeal, not review. The Court also noted the appellant's submissions on the consent order strayed beyond the ground stated in the application, amounting to an attempt to introduce new evidence without leave.
Relying on Nyamogo & Nyamogo v Kogo, National Bank of Kenya v Ndungu Njau, Mulla, Pancras T. Swai, Mary Wambui Njuguna and Abasi Belinda, the Court held that review cannot be used to correct erroneous conclusions of law or evidence; only a self-evident, patent error qualifies. An erroneous view of evidence or law is a ground of appeal, not of review.
Whether the delay of one year and two months in filing the application for review was excusable
The delay was inordinate and unreasonable. It was not enough for the appellant merely to state that a consent was on record and that it expected the respondents to honour it; no satisfactory explanation was given.
The impugned judgment was dated 14 November 2014 and the review application 27 January 2016 — a delay of 1 year, 2 months. The Court invoked Daphene Parry v Murray Alexander Carson, warning courts not to be led away by sympathy where a party with a good case on the merits is out of time without valid excuse, and Richard Nchapai Leiyang v IEBC on the limits of the court's discretion.
The standard for interference with a lower court's exercise of discretion on appeal
This Court will not interfere with the exercise of discretion by a lower court unless satisfied that the decision was clearly wrong — that it misdirected itself, acted on matters it should not have, or failed to consider matters it should have, arriving at a wrong conclusion (Mbogo v Shah).
The appeal arose from a ruling dismissing an application for review in the exercise of judicial discretion. Guided by the predecessor Court's decision in Mbogo v Shah and reiterating the first appellate duty in Abok James Odera v John Patrick Machira, the Court found the trial judge properly exercised his discretion and declined to interfere.
Legal principles established
#- Once a Notice of Appeal is filed, an appeal is deemed instituted and the party cannot thereafter seek review of the judgment from which the appeal accrues; the options of appeal and review cannot be pursued concurrently or one after the other.
- An error apparent on the face of the record must be self-evident and patently obvious; a mere erroneous decision or an error requiring lengthy reasoning or a reappraisal of evidence is not a ground for review but at most a ground of appeal.
- An application for review must be made without unreasonable delay, and an inordinate delay without satisfactory explanation will defeat the application.
Court orders
#- 1.The appeal was found to lack merit and was dismissed
- 2.Costs of the appeal were awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nakuru
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (the Court described itself as 'a first appellate court'); review governed by Section 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules and Rules 85 and 87 of the Court of Appeal Rules
Relief refused
#Setting aside of the ELC ruling dismissing the application for review
The filing of a Notice of Appeal rendered the application for review unavailable and incompetent; no error apparent on the face of the record was established; the delay was inordinate and unexplained
Costs
The appeal was dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end, we find no reason to interfere with the learned Judge’s exercise of his discretion in dismissing the application for review. As a result, we find that the appeal lacks merit and is hereby dismissed with costs to the respondents.
There can be no place for review once an intention to appeal has been intimated by filing a notice of appeal.
Mere error or wrong view is certainly no ground for a review although it may be for an appeal.
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.
we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
A reappraisal of the evidence on the record for finding out the error would amount to an exercise of appellate jurisdiction, which is not permissible by the statute.
Issues in the judgment
#Tension between two lines of authority addressed in the judgment: Highway Secondary School v Mmosi Moi suggested review could be pursued after a notice of appeal, while Otieno, Ragot held otherwise; the Court resolved it in favour of Otieno, Ragot
Apparent internal inconsistency: paragraph 7 states the learned Judge found a 14 months' delay, while paragraph 51 states the delay was 1 year, 2 months and elsewhere it is described as over 2 years by the respondents
The record of appeal is described as raising nine grounds, with grounds 1, 2 and 3 abandoned; the remaining condensed ground as printed also shows that the full party names, case number and neutral citation are not stated in the judgment copy supplied
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Multipurpose Co-operative Society Ltd v Serser & 3 others (Civil Appeal 160 of 2018) [2023] KECA 441 (KLR)", Case Analysis (2023). Civil Appeal (Nakuru) — as stated in the record of appeal dated September 7, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/441/eng@2023-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.